Category: legal docs

The new WASPA Code of Conduct is a complete rewrite of the Wireless Applications Service Providers’ Association’s rules which regulate the mobile content and services industry in South Africa. One of the biggest changes to the Code is a consolidation of the old Advertising Rules and the Code of Conduct itself along with a dramatically scaled down body of rules governing advertising copy. The changes go further than restructuring the old framework. As WASPA’s advisory note presenting an overview of the new version of the Code points out –

The revised Code of Conduct incorporates the most important portions of the Advertising Rules, but without many of the unnecessarily restrictive details in those Rules. The new Code is organized more clearly and logically than previous versions, aims to be less open to interpretation, and intends to function as an effective set of principles for the WASP industry, as it exists a decade after WASPA’s formation.

Of course this version of the Code doesn’t exist in a vacuum. WASPA’s adjudicators and appeals panelists (which includes me) have documented their interpretations of various provisions of older versions of the Code in a substantial library of rulings over the years and one of the challenges in the near term will be harmonising those rulings with the new Code and preserving guidance on a range of topics including subscription service marketing, service “bundling” and spam and applying that guidance to the new Code’s clauses.

The WASPA Code has been better aligned with legislation such as the Consumer Protection Act, the Protection of Personal Information Act and the Electronic Communications and Transactions Act which should translate into improved consistency between the law and the Code, as a self-regulatory framework. The new Code also reinforces WASPA’s importance as a regulatory body in the South African mobile content and services industry. This comes at a good time as the trend towards mobile services is only going to strengthen going forward.

Like this:

I had to apply for unabridged birth certificates for our children the other day so I sat down in front of my laptop, browsed to the Department of Home Affairs’ website and logged into the secure Civic Services portal to start the process. I used my new ID card with its embedded personal digital certificate and a one-time code from my smartphone to authenticate myself.

As you can imagine, Home Affairs has all my details and who our kids are so all I really had to do was select the option for the unabridged birth certificates and place the order. The system informed me that because this was the first time I had requested these particular birth certificates there wouldn’t be a charge. I received a confirmation of my request along with digitally signed and locked digital versions of our kids unabridged birth certificates about five minutes after I concluded my request.

The birth certificates were in PDF and I quickly verified that they were signed by Home Affairs using the Department’s current public key (they were) and then forwarded them on to the service provider that requested them from us.

At this point you are probably wondering how I managed to do all of this? You probably had to drive out to your local Home Affairs office, fill out the forms on paper and wait in line to hand the forms over to the person behind the counter and be told you’d have to wait six to eight weeks for the birth certificates to be printed out in Pretoria and delivered to that office. You would then have to return to the office with your receipt so you could collect the pages.

My story is completely hypothetical. That process is not currently possible at the moment. This isn’t because the technology doesn’t exist, it does, or because the law doesn’t currently cater for it, it does. Implementing processes like this requires a different approach to digital government services. In this particular case, the starting point is likely a combination of a number of factors:

A secure, complete and accurate citizens’ and residents’ database;

A secure portal through which citizens and residents can access government services using a unique digital identity which is linked to the data the government has about them;

Digital certificates issued to each citizen and resident along with each person’s national identity;

A convenient means of both securing and using a digital identity to authenticate each citizen and resident that has a cross-platform mobile as well as conventional desktop interface.

The Electronic Communications and Transactions Act provides a broad framework for much of what would be required, including digital signatures, digital documents and data retention and evidence. The benefits could be to radically streamline government services and empower citizens to transact more securely and effectively with each other. These benefits are not reserved for government services, they extend to private services too. In fact, a single secure and digital identity for South Africa’s inhabitants could serve as a platform for a variety of providers to develop engagement models that could transform how the country functions.

So why isn’t such a system being developed (or in place already – much of the technology required has probably existed for some time now). The Verge has an interesting post on this topic titled “Our future government will work more like Amazon” which has a few relevant observations, including this one:

The problem is logistics. Sure, the Postal Service would probably love to have some fresh resources to boost up these facilities. But consolidating many offices into one is never easy. And reappropriating human resources would definitely be controversial. But with good digital systems to reduce paperwork, remember previous encounters with citizens, and greatly reduce the need for people to visit brick and mortar offices in the first place, it’s certainly feasible.

From a legal perspective there are very few barriers to this sort of future. Aside from logistics, the challenge is that our culture is still heavily invested in paper and paper paradigms and the change to digital workflows seems to be prohibitively complicated. That said, there are many benefits to going digital including cost savings, better security and improved redundancy (if you work with paper files, how much redundancy is built into your filing system?).

Simply adopting the necessary technologies isn’t going to solve the problem either. Effective implementation is essential and failing to do this has led to controversies such as the SANRAL consumer data exploits we read about recently. I came across another example of poor implementation when I began writing this post this morning, somewhat ironically from the South African Post Office’s Trust Centre which is charged with delivering trusted digital identity solutions:

Leaving aside what must be an oversight, the Trust Centre delivers a key component in this future digital economy. An advanced electronic signature, for example, opens the door to a range of digital transactions otherwise reserved for paper-based transactions. One of the things I would like to do, as an attorney, is commission affidavits digitally. That is only legally possible if both I, as the attorney, and the person who wants to have an affidavit commissioned have advanced electronic signatures. At the moment this has to be done in person but when both parties have advanced electronic signatures (and have been authenticated by the Trust Centre), this could probably take place remotely. That, alone, represents a cost and time saving. Other transactions which become possible include digital contracts to sell land and even truly digital wills.

Going digital can transform how we function and how businesses and government operate. It just takes vision, an understanding of the legalities and risks and sensible technology implementations.

Email that increasingly includes bank statements, insurance policy information and functions as a backup for when you forget your password for your online profiles;

Document storage and backups for all those policy documents, scans of your ID and passport, accounting records and tax returns;

Photos and videos of your family going back years, decades even (have you maintained your print photos and offline video files to the same extent?);

Various social profiles which you use to keep in touch with friends and family on a daily basis.

The cloud is more than just an incidental part of your life. Unless you are a committed paper-based archivist, you probably have more and more of your life recorded in bits stored on servers around the world and you are likely the only person who can access that data. When the time comes for you to leave this life your family will need to access that data for various reasons and, short of a séance, you won’t be in a position to pass along your access credentials if you don’t plan ahead.

Here are 4 suggestions for how you can do to make sure your family can access your digital assets after you pass on:

Use a password manager like LastPass or 1Password to store all your passwords and key information (I use LastPass and it enables me to store credit card information, ID and passport information and a variety of other sensitive data securely) and use a strong master password to secure your password manager profile (while you’re at it, change your passwords to unique and more secure passwords to protect your profiles better).

Tell your family about your online profiles and how to access them in your will or in a document you leave with your will. If you use a password manager, share the master password with trusted family members or friends so they can unlock your digital assets when the time comes.

Backup your data regularly and automatically. Don’t rely on manual backups. Automate them. Use whichever secure and reliable backup service you prefer (popular options include Dropbox, Google Drive and more) but make sure they include your important stuff and work properly. Storage is becoming cheaper all the time so you should have plenty of space for all your stuff.

Organise your digital archives so they can be easily searched and key documents located by your heirs. One of the first things your family will need to do when you die is report your estate to the relevant authorities and they will need key information to do that. Check with your attorney what they will need and collate that information for them in a convenient folder or location and share that with your family ahead of time.

Make sure you identify all your key online services to your family and explain to them how to access them and your data. Don’t assume that everyone knows the services you use and how to use them effectively. They may not share your passion for those services but you probably don’t want to add to their aggravation by forcing them to stumble around unfamiliar services while grieving for you.

Prologue

Contracts are increasingly complex and difficult to navigate, even with recent efforts to simplify the language we use. Much of this is the result of efforts to express complex and interrelated legal and compliance concepts in words and since every legal writer has his or her individual style, the variations in contracts are staggering.

Recently one of my clients asked me for a single paragraph that somehow encapsulated a vendor contract. My response was that such a thing is extremely risky and not pragmatic. There is simply too much in a contract of that nature to adequately express in a single paragraph. Instead, I suggested a couple of options that streamlined the interface for the complete contract.

Later that night I thought about the request further and what it would take to create a “1 paragraph contract” for my client. I realised that such a thing would look very different to the contracts we have now. In fact, the path to a an effective contract that could be expressed in such a short form could lead to a radical overhaul of the broader legal and compliance environment that underpins almost everything we do.

Imagine that instead of expressing those complex and interrelated legal and compliance concepts in words, we reverse the process and establish a syntax to express those concepts more abstractly and yet in a way that still includes all that stuff the “fine print” is designed to cater for in our every day dealings? We could develop a new way of going about our business that doesn’t require lawyers writing pages of contracts that may still be susceptible to interpretational differences.

Going further, what if the way we contract ties directly into a broader contracts profile we all have from our first contract and which gives assurances as to what we can legitimately contract for? This is just the beginning of what could be possible. Legal frameworks could be developed, implemented and enforced programmatically. It would mean a radical transformation of the legal profession, possibly the end of much of the profession as we know it today. On the other hand, it would mean that people could go about their lives, dealing with each other with more confidence, far less uncertainty and without needing to spend so much on unintelligible legal fees.

The story below is a hypothetical scenario which should give you an idea of how this could work. Whether this scenario becomes a reality one day is another question altogether. I suspect that two developments will be key drivers: the so-called Internet of Things and cognitive systems like IBM’s Watson.

How I sold my car in 2034

I arranged to meet Andre on a sunny Sunday morning, 28 May 2034, to sell him my vintage car. I hadn’t met him in person before but I knew it was him because I received verification of his identity when we shook hands and sat down through an interaction between our CitIdents, the SmartNet and some or other authentication process my contract technician told me happens in the background. We met in a local teahouse and chatted while the waitron delivered our orders. Andre asked me about my run earlier that morning (my best time yet) and I congratulated him on his daughter’s latest masterpiece which he shared the night before. We then turned our attention to the deal we were about to make.

Andre kicked off the discussion with a quick data request to access the car’s entry in my Registry. He reviewed the car’s purchase and service history along with its logged mileage and general condition. It pretty much matched the data representation I posted with my sale ad the week before and he was also able to confirm that I was the car’s owner and entitled to sell it to him in the first place. He didn’t say anything but I suspect he also ran a quick valuation check through SmartNet to confirm my asking price was reasonable. This sounds like a lot but he finished his initial review in the time it took me to empty a sachet of sweetener into my tea and stir it.

He smiled and said he was comfortable with the car’s history and condition as well as my price. We exchanged data requests for access to the relevant portions of our contract profiles in our respective CitIdents (this has become standard practice when contracting these days). We both received confirmation that we had the necessary legal capacity to sell and buy the car (Andre’s verification included confirming with my bank that I have paid my vehicle finance and the bank had transferred ownership to me). Andre’s bank confirmed with me that he had sufficient funds to pay for the car on our agreed terms and established a payment link to my bank account for a one way funds transfer.

We decided, for the sake of tradition, to conclude our contract with a handshake. Our wrist tokens registered each other’s proximity as I said “I, Paul Jacobson, agree to sell you my car for our agreed price today.”. Andre smiled again and, in return, said “I accept your offer to buy your car today.”. With that our respective CitIdent’s registered the details of our agreement: the car being sold, our agreed purchase price, the current date and time as well as our verified identities. The SmartNet quickly polled our CitIdents for the further information it required to complete the legal and logistical aspects of our deal, advised the relevant local authorities so they could update their records and I received a data notification that the car had been removed from my Registry and transferred into Andre’s along with confirmation of the first of Andre’s payments.

We chatted a little more, finished our tea. Andre took a call from his partner and while he was chatting, I took a moment to review the transaction records newly associated with my CitIdent’s contract profile. Sure enough the sale was symbolically represented using the usual cheerful info-icons with the broad parameters of our transaction supplemented with the usual conditions, restrictions and permissions provided by the SmartNet’s latest contracts AI. The latest models finally introduced cross-jurisdictional compatibility between different regions’ contract models.

Andre finished his call, I sent payment to the waitron with a tip and thanked Andre. For a moment I couldn’t understand why the car didn’t respond to my proximity and unlock and then I realised it wasn’t mine any more. Senior moment. Since it was a lovely Autumn morning I decided to take a pod home and spend the rest of the day with my wife and children.

Ken, I really mean open sourcing, not crowd sourcing. The place to start (I think) is to simply “out” the template banks that every law firm keeps. 2007 was the dark ages, in web terms; it will not be possible to keep templates off the web much longer. And business lawyers shouldn’t try. (Prediction: the most successful won’t.) The profession should embrace transparency and move on to charging clients for counseling, negotiating, customizing. Not for unveiling the boilerplate.

Carlton points to news that international legal group, DLA Piper, reportedly intends dropping the walled garden around its precedents which it restricted to its clients (a major legal group already sharing its precedents with its clients). The Koncision post was partly in response to an earlier post by Carlton titled “Open Sourcing Legal Docs” which explores the idea of making legal precedents publicly available as part of a broader process of identifying best practices and almost standardizing sets of documents based on those best practices. Carlton concludes that post with the following observation:

And the legal profession will do just fine. Right now the industry is still behaving as though there is proprietary value in standard boilerplate documents, and the opposite is true: there is tremendous public value in the documents, and unleashing that value helps clients and lawyers alike. The sustainable proprietary value is in counseling what, when, how, and why not or why something else instead.

The other post which inspired this post is the second part of a series of posts titled “Developing CAD for Law” on the Contract Analysis and Standards blog. This second post talks about how legal documents have an almost modular construction and the goal of a contract development platform would be to take blocks of text or clauses that can be combined, forming coherent legal documents appropriate for specific circumstances. I pointed out a service which does something similar in my previous post. Another interesting approach is a comparative approach to certain types of documents aimed at distilling the best clauses to be incorporated into the intended document. The example I came across is a template for an End User License Agreement on the kiiac site.

This all points to an increasing shift away from document-based legal services to what the legal services business should be: applying legal knowledge to specific situations and formulating effective legal frameworks to meet clients’ needs. Legal documents become analogous to software applications with variable functionality. The real value is in the knowledge and skill that produces not only those applications but also develops the appropriate and broader framework.

I mentioned in my previous post that I will be releasing my documents under a Creative Commons license. I have selected the Creative Commons Attribution-ShareAlike 2.5 South Africa License for my documents and my first release under the “web.tech.law legal docs” brand is an agreement for photographers which I published to the web.tech.law Facebook page yesterday evening. This first document is available for free although future documents be paid “apps”. I will expand this offering in due course to include a support model for these documents. The document is available for download and comes with an explanatory note: